Glasker v. Small Wonders

Filing 44

ORDER granting in part and denying in part 39 Motion to Compel; by 12/18/17 defendant to file status report pertaining to plaintiff's compliance with discovery obligation; discovery deadline 1/15/18; settlement position 1/22/18; dispositive motions 2/16/18. Signed by Magistrate Judge Katherine P. Nelson on 12/11/17. copy mailed to plaintiff regular & certified mail (7017 1000 0000 1383 8047) (srr) .

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERICA GLASKER,
Plaintiff,
v.
SMALL WONDERS
Defendant.

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CIVIL ACTION NO. 17-00121-N

ORDER
On December 6, 2017, the undersigned held a hearing on Defendant Small
Wonders’ (“Defendant”) Motion to Compel and Amended Motion to Compel (Docs.
34, 39). 1 Pro se Plaintiff Erica Glasker was present on her own behalf, and attorney
Nathan Friedlander was present on behalf of Defendant. For the reasons discussed
on the record, and detailed below, the Amended Motion to Compel (Doc. 39) is
GRANTED IN PART and DENIED IN PART.
I.

Background
On October 31, 2017, Defendant filed its first Motion to Compel (Doc. 34),

detailing Plaintiff’s failure to respond to its discovery requests, and requesting that
the Court compel Plaintiff to respond to Defendant’s interrogatories, requests for
production, and to file Rule 26 disclosures. Upon receipt of Plaintiff’s motion for
extension of time, the Court permitted an extension of time in which to comply with
her discovery obligations, and set a deadline of November 17, 2017. (Doc. 36).

The Amended Motion to Compel (Doc. 39) superseded the Motion to Compel (Doc. 34). Thus, the
Motion to Compel (Doc. 34) is no longer “pending” before this Court and the Clerk is directed to
terminate the motion via CM/ECF.

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On November 17, 2017, Plaintiff filed a document styled as “Notice of Filing
Rule 26 Disclosures.” (Doc. 37). On November 30, 2017, Defendant filed an
Amended Motion to Compel, which detailed its position that the disclosures filed by
Plaintiff failed to comply with Rule 26 and that Plaintiff has wholly failed to
respond to Defendant’s request for production. (Doc. 39). Thereafter, the
undersigned set this matter for hearing. (Doc. 40).
II.

Summary of December 6, 2017 Hearing
At the hearing, the undersigned discussed Plaintiff’s discovery obligations

with the parties, and heard the parties’ positions with regard to which obligations
remained unfulfilled. Upon consideration, the Amended Motion to Compel (Doc. 39)
is GRANTED IN PART and DENIED IN PART as detailed below.
A.

Requests for Production

For clarity, the undersigned has listed each request for production contained
in Doc. 33, and summarized the discussion at the hearing with regard to each
request below.
1. Produce a true and correct copy of all payroll records of any earnings,
employment, job held by you from November 21, 2016 to present.
Plaintiff indicates she has no payroll records, other than paystubs.
Plaintiff shall provide copies of any relevant paystubs to Defendant on or
before Friday, December 15, 2017.
2. Do you receive any other form of government assistance, such as housing
assistance payments, food stamps, child care subsidies, or other assistance,
whether or not of a type enumerated? If so, produce a true and correct copy of
any records of such assistance payments, applications by you for the same, or
any related documents, from October 21, 2016 to present.
Plaintiff is directed to answer this question, and provide the requested
records to Defendant on or before Friday, December 15, 2017.
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3. Produce a true and correct copy of any records of your employment with
Small Wonders Daycare, including but not limited to:
A. Payroll records;
B. Certifications;
C. Employment evaluations;
D. Records of communications between you, or anyone acting on your
behalf, and Small Wonders or any of its employees;
E. Copies of any text messages or emails pertaining to said employment or
communications by you or anyone acting on your behalf and other
employees of Small Wonders;
F. Any records from your personnel file at Small Wonders.
Plaintiff stated she does not have any payroll records (other than
paystubs), employment evaluations, or records from her personnel file
(Items A, C, and F) in her possession. At the hearing, she tendered a
computer disk containing audio recordings of conversations between Small
Wonders employees and herself. (Item D). She stated that she has no
emails but that she would provide copies of text messages between herself
and several co-workers (Ashley and Miranda) (Item E) and copies of any
certifications (Item B) to Defendant on or before Friday, December 15,
2017.
4. Produce a true and correct copy of any records of proceedings between
either the Alabama Unemployment Compensation Board or the Equal
Employment Opportunity Commission which pertain to complaints by you
against Small Wonders or claims for compensation made by you for Small
Wonders.
Plaintiff stated that she did not have records from the Alabama
Unemployment Compensation Board and would e-mail defense counsel a
copy of any related transcripts from Equal Employment Opportunity
Commission proceedings that are in her possession on or before Friday,
December 15, 2017.
5. Produce a true and correct copy of any records maintained by you of any of
the events of your employment or termination at Small Wonders, including
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but not limited to diaries, calendars, personal notes, memoranda you
maintain, text messages or emails sent to you or you have sent to others.
Plaintiff stated that she does not have any materials responsive to this
request. If Plaintiff determines she does have responsive materials, she
shall provide them to Defendant on or before Friday, December 15,
2017.
6. Produce a true and correct copy of any documents not previously produced
which you contend in any way support your contention that Small Wonders
violated any legal right towards you or committed any act of discrimination
against you for which you seek redress in the subject lawsuit.
Plaintiff stated that she does not have any materials responsive to this
request. If Plaintiff determines she does have responsive materials, she
shall provide them to Defendant on or before Friday, December 15,
2017.
7. Produce any document not previously produced which supports any claim
for damages you contend you have by Small Wonders.
Plaintiff shall respond to this request on or before Friday, December 15,
2017.
8. Produce any audio recordings or video recordings of any conversations or
events which you have pertaining to your employment at Small Wonders or
which you contend supports any legal claim you may have against Small
Wonders.
At the hearing, she tendered a computer disk containing audio recordings
of conversations between her and Small Wonders employees. She stated
that she has no video recordings and has made no other audio recordings.
If Plaintiff determines she has responsive materials, she shall provide
them to Defendant on or before Friday, December 15, 2017.
9. Produce a true and correct copy of your cell phone bills for the period of
May 9, 2016 through January 21, 2017.
The undersigned finds that this request is overbroad, may implicate
Plaintiff’s privacy interests in the contents and usage of her cellular
phone, and inappropriate without a specific showing pertaining to the
propriety and scope of the request. Thus, this request is DENIED without
prejudice. Plaintiff is not required to provide copies of her cellular phone
bills to Defendant at this time. See generally Riley v. California, 134 S. Ct.
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2473 (2014) (discussing contents of cellular phones and privacy
implications in the criminal context). The undersigned acknowledges that
Defendant has not requested the contents of Plaintiff’s cellular phone.
However, at the hearing, Defendant expressed interest in determining
what phone numbers were listed in Plaintiff’s billing records in order to
determine who she may have been communicating with between May 9,
2016 and January 21, 2017.
B.

Rule 26 Disclosures

Though Plaintiff filed a document entitled “Notice of Filing Rule 26
Disclosures,” as detailed in the Amended Motion to Compel, this document does not
provide the information described in Fed. R. Civ. P. 26. Accordingly, on or before
Friday, December 15, 2017 Plaintiff shall file provide Defendant with the
following:
(i) the name and, if known, the address and telephone number of each
individual likely to have discoverable information--along with the
subjects of that information--that the disclosing party may use to
support its claims or defenses, unless the use would be solely for
impeachment;
(ii) a copy--or a description by category and location--of all documents,
electronically stored information, and tangible things that the
disclosing party has in its possession, custody, or control and may use
to support its claims or defenses, unless the use would be solely for
impeachment;
(iii) a computation of each category of damages claimed by the
disclosing party--who must also make available for inspection and
copying as under Rule 34 the documents or other evidentiary material,
unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature and
extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any insurance
agreement under which an insurance business may be liable to satisfy
all or part of a possible judgment in the action or to indemnify or
reimburse for payments made to satisfy the judgment.
Fed.R.Civ.P. 26(a)(1)(A)(i)-(iv).
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C.

Interrogatories

Defendant’s Amended Motion to Compel did not specify whether Plaintiff had
responded to its interrogatories. If Plaintiff has not responded, she shall do so on or
before Friday, December 15, 2017.
D.

Status Report

On or before Monday, December 18, 2017, Defendant shall file a status
report pertaining to Plaintiff’s compliance with her discovery obligations. Defendant
shall also indicate whether it is seeking sanctions.
III.

Modification of Scheduling Order
Having found good cause for the reasons stated on the record, and upon

consent of the parties, the undersigned modifies the following deadlines as
previously set in the Scheduling Order (Doc. 28) as follows:
Discovery Completion: January 15, 2018
Position Regarding Settlement: January 22, 2018
Dispositive Motion Deadline: February 16, 2018
All other deadlines and provisions in the Scheduling Order (Doc. 28) are
unmodified by this Order and remain in full force. The Clerk is DIRECTED to mail
a copy of this Order to Plaintiff via Regular and Certified Mail.
DONE and ORDERED this the 11th day of December 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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